- (1.) THIS case has come to us on a reference made by a learned Division Bench of this Board. The facts giving rise to it are that the appellant-plaintiff Panchia and others preferred a suit on their own behalf and on behalf of the residents of village Gothra, Tehsil Dausa, Dist. Jaipur, for a declaration that the suit land was the pasture land of the village on which all the villagers had a right to graze their cattle and collect the natural produce, for the cancellation of the Parcha Settlement issued in the name of the respondents, as well as for the possession of the suit land and for restraining the respondents from interfering with the right of the plaintiffs. The trial court (Sub-Divisional Officer, Dausa) decreed the suit for declaration as as well as cancellation of the Settlement Parcha. No orders, it appears, were passed regarding possession and injunction. In appeal the learned Additional Commissioner, Jaipur relied on the Rajasthan High Court Ruling, 1960 RRD. III. 1960 RLW. 248, Codu Vs. Union of India, and dismissed the suit holding that it was not triable by revenue courts and remanded the case to the trial court with the direction that the plaint be returned for presentation to the proper court. In the appeal preferred to the Board it was urged on behalf of the appellants that the case of Codu relied upon by the learned Additional Commissioner was distinguishable from the present case. It was further urged on the authority of 1953 RLW 332 Gulla Vs. Dolia, that when the prayer for cancellation of the Parcha Settlement was triable by the revenue court other reliefs could also be granted by it.
(2.) THE learned members hearing the appeal came to the conclusion that the essential relief sought in the case was that the suit land be declared to be pasture land, that the prayer for the cancellation of the parcha was only an ancillary one. THEy further considered whether the prayer for the declaration of the suit land as pasture land was triable by a revenue court or not. THEy distinguished Codu Vs. Union of India, 1960 RRD. III. 1960 RLW. 248 from the present case on the ground that it was a suit for declaration that the sale of the standing grass by the former State of Ajmer was wrong and illegal along with the prayer for declaration that the plaintiffs had right title and interest to graze their cattle to the exclusion of the cattle of other villagers thereon, while that present case was for the declaration of the suit land to be a pasture land of the village and for the cancellation of the Settlement Parcha issued in the name of the respondent. Further examining the provisions of Sec. 251 and 5 (28) of the Rajasthan Tenancy Act, 1955 and the provisions of the Rajasthan Tenancy Rules, 1955 prescribing the manner for the demarcation of pasture land along with the provisions of Sec. 16 of the Rajasthan Tenancy Act and Sec. 92 and 93 of the Rajasthan Land Revenue Act the learned Members came to the conclusion that a suit for declaration of any land as a pasture land was triable by a revenue court. At this stage, however, they came to face the decision of another D. B. of the Board, Daya and others Vs. Lalsingh and others (Appeal No. 7/jalore/59) decided on 28th October, 1960 in which it was held by the majority opinion, that a suit ST this type was not triable by a revenue court. The learned Members hearing the present appeal could not find it possible to agree with the decision in Daya Vs. Lalsingh and have, therefore, referred this case for a decision by the Full Bench. We have heard the learned counsel for the appellant at length ex parte because of the respondents or their counsel not caring to put in appearance despite notice. Appeal No. 7/1959/jalore, Daya Vs. Lalsingh was originally heard by a D. B. to which one of us was also a party. That suit arose because the disputed land therein had been entered at the time of Settlement in the name of the defendants notwithstanding the claim that it had been used by the people of the village as Gochar or "charagah" from times immemorial. The suit was dismissed by the trial courts on merit for want of proof that the land was being used as pasture land from times immemorial. In appeal the learned Addl. Commissioner did not dismiss the suit on merits but on the ground that a suit for declaration of any land as pasture did not lie to the revenue courts and that the plaintiffs should have proceeded under the Rajasthan Tenancy Government Rules, 1955. This decision of the learned Addl. Commissioner was impinged before the Board on the ground that he had invented a new case quite different from that of the parties. One of us sitting to hear that appeal examined the provisions of Sec. 5 (28) of the Rajasthan Tenancy Act along with Sec. 91 thereof and held that learned Addl. Commissioner should have decided the case himself on this basis. With this view Codu's case 1960 RRD. in 1960 RLW. 248 was distinguished on facts. The other learned member hearing the appeal, however, disagreed with this view. He was of the opinion that the decision in Codu's case fully covered that case also and that no declaration for pasture land could be granted under Sec. 91 of the Rajasthan Tenancy Act. He was also pleased to observe that even if the pasture land was defined under Sec. 5 (28) of the Act, Rule 4 of the Rules made thereunder permitted a Settlement Officer to take action for the demarcation of pasture land in village where Settlement operations were in progress and that the very fact that he had deemed it fit to grant a parcha Kasht to the other party for the disputed land should go to establish that he did not like the land to be reserved for pasturage. He further went on to observe that the plaintiffs wanted the cancellation of the parcha, Settlement as well as a declaration of their rights over the land, when Sec. 16 of the Rajasthan Tenancy Act clearly forbade the grant of Khatedari rights in a pasture land; that when the Khatedari rights could not be granted in a pasture land, the prayer of the plaintiffs for the declaration of their rights over the land could not be granted by the revenue courts and the only remedy left to the plaintiffs was to approach the civil courts. The case was referred to the learned Chairman. He also was pleased to observe that Codu's case covered that case as well and that no declaration of a pasture land could be made under Sec. 91 of the Rajasthan Tenancy Act. He was further pleased to observe that what was claimed was a sort of easement which cannot be deemed to be conferred under: the Rajasthan Tenancy Act. It was also observed that the plaintiff could have challenged the entries in the record of rights and sought their correction, in accordance with law, but that when they did not prefer to do so, the entries were binding on all revenue courts under; Sec. 14l of the Rajasthan Land Revenue Act. The learned D. B. referring the present appeal to this Full Bench has been pleased to examine the observations of the learned Chairman deciding Daya's case referred to above. It has been observed that the right of grazing cattle could only be a "customary right" and not a "right of easement", and differed from the latter in the same manner as a "right in gross" deferred from an "easement appurtenant to a tenement". We may refer to a D. B. Civil Writ No. 3307 of I959, Ramphool and others Vs. Board of Revenue and others, decided by the High Court of Rajasthan on the 30th October, 1961. In that case the application was for being recorded as Khatedar over certain land on the ground that it had been in the cultivatory possession of the applicant for long. It was allowed by the Assistant Records Officer. In appeal, however, the Settlement Officer, Alwar rejected it on the ground that the entire land in question was 'gochar' land. A revision was preferred to the Board. It was accepted and the order of the Settlement Officer was set aside and that of the Assistant Records Officer restored. The order of the Board was challenged by way of writ. The Board had decided the revision on the ground that the land in question had not been till then declared to be a pasture land by any competent authority and, therefore the provisions of Sec. 16 of the Rajasthan Tenancy Act were not attracted. The High Court was pleased to accept the Writ and setting aside the order of the Board has remanded the case for decision afresh with the observation that the definition of pasture land under Sec. 5 (28) includes also "land used for grazing of the cattle of a village or villages" and not only the land so recorded in the Settlement records. The case, it was directed, should, therefore, be examined from the point of view whether the land was being used for the grazing of cattle or not. The judgment of the High Court in Ramphool's case referred to above will go to show that the question whether a land is pasture land or not has to be examined by the revenue courts themselves. It will also go to show that it should be examined from the point of view both of its actual use as such as well as the record to that effect in the revenue papers. We have examined Codu Vs. Union of India, 1960 RRD. III. 1960 RLW. 248 also. That wa,s a case in which a representative suit had been filed for the grant of a perpetual injunction restraining the Government and its servants and agents from cutting and removing the grass grown on the land alleged by the plaintiffs to be in their use as pasture land of the village for a number of years without any interruption or hindrance from anybody. It was in, this context that it was observed by Dave J. , deciding the case that Sec. 91 of the Rajasthan Tenancy Act did not cover such a case under the expression "not otherwise provided for". Secs. 88 and 89 of this Act were examined in this context and it was held , that this expression should refer only to such rights which may be conferred by the Act itself. The sight of obtaining a perpetual injunction against cutting and removing of grass from a disputed land, was certainly not conferred by any of the provisions of the Act. As observed earlier, the present is a case arising as a result of the alleged wrongful r interference with,the possession and user of the disputed land as pasture land by the plaintiffs appellants and the grant of settlement parcha to the respondents. Sec. 5 (28) of the Act lays down that any land used for the grazing of the cattle of the village will also be a pasture land. The Rajasthan Tenancy Government Rules, 1955, Chapter II Rules 3 to 7 contain provisions to give effect to the provisions of this clause (28) of Sec. 5. Rule 3 very clearly lays down that the land recorded as Gochar Bhoomi in the village papers or Settlement record shall continue to be as such. Rule 4 authorises the Settlement Officer to demarcate pasture land, in village where Settlement operations are in progress. Rule 6 authorises the Sub-Divisional Officer to earmark land for pasturage. Rule 7 very clearly lays down that the land earmarked under these Rules shall be entered as pasture land or "charnot" in the village papers and such land shall not be given to anyone for cultivation or for any other person without the sanction of the Collector. Pasture lands are to be earmarked out of the unoccupied lands only. In Jagir villages, in case there be a dearth of common grazing areas, parts or whole of the "birs" which were used by the Jagirdars as grass preserves and leased out for grazing the cattle and recorded as being "makbooja Thikana" can also be termed as pasturage. The areas used exclusively for the grazing of cattle without cutting grass from them are to be recorded as "gair Mumkin Charagah" and excluded from assessment. Under these provisions pasture lands are a subject to be dealt with under the Rajasthan Tenancy Act and the Rules made thereunder. Sec. 93 of the Rajasthan Land Revenue Act, 1956 authorises the regulation by Rules of the right of grazing on pasturage land, laying down at the same time that such right shall extend only to the cattle of the village or villages for which such land has been set apart. Secs. 88 to 92 A of the Rajasthan Tenancy Act deal with the suits for declaration and injunction. Sec. 88 enables the bringing of a suit for declaration of any tenancy or sub-tenancy right as well as Khudkasht right against any person claiming to be a tenant or sub-tenant. Sec. 89 enables the bringing of a suit for declaration of a class of tenancy, etc. Sec. 90 enables the bringing of suit for the declaration of land as Khudkasht. Sec. 91 is the residuary section laying down that a suit may be brought for the declaration of all or any of the rights conferred by this Act and not otherwise provided for. When a land which is being used for the grazing of cattle has been recognised to be a pasture land vide Sec. 5 (28) and the Rules made thereunder as well as the Rules made under Sec. 93 of the Rajasthan Land Revenue Act lay down the procedure for the pasture land as well as the regulations of the rights of grazing, the right to have a land declared as a pasture land cannot but be deemed to be a right conferred by the Rajasthan Tenancy Act. Such a suit can, therefore, be properly entertained by the revenue courts under Sec. 91 thereof. Sec. 92 A of this Act provides for the suits for injunction in respect of such rights. We, therefore, find that the learned Additional Commissioner has committed an error in deciding that the suit for the declaration of any land as pasture land did not lie to the Revenue Courts. The case is triable, as discussed above, by the revenue courts and it has to be tried and decided as such by the learned trial court. The learned Additional Commissioner should have also heard the parties on merits and decided it as such. In the result this appeal is allowed, the judgment of the learned Additional Commissioner, Jaipur, set aside, and the case remanded to him for hearing and determining the appeal afresh in accordance with law keeping in view the observations made above. . ;